Is the right of preemption immediately actionable upon knowledge of the sale?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
The sound position within the Madhhab is that the right of preemption is instantaneous (Ala al-Fawr). If the preempter demands it the moment they learn of the sale, it is confirmed; otherwise, it becomes void. This was stated by Ahmad in the narration of Abu Talib, and it is the view of Ibn Shubruma, Al-Batti, Al-Awza'i, Abu Hanifa, Al-Anbari, and Al-Shafi'i (in one of his two opinions). The evidence for this immediacy is the Hadith stating: 'Preemption is like untying the hobble' (Hil al-'Iqal), or in another narration, 'Preemption is like the drawing of the hobble's knot; if tied, it is established, and if left, the blame lies with the one who left it,' and another Hadith stating that preemption belongs to the one who rushes to claim it ('man wathabaha'). Furthermore, preemption is a choice to avert harm from property, thus requiring immediacy, like the right to reject due to a defect. Delaying it harms the buyer by preventing their ownership from settling and restraining them from making improvements or construction for fear of losing the property, and compensating them with the value does not fully remove the harm, as the loss incurred usually exceeds the value itself, coupled with the exertion expended.
Supporting text
A secondary opinion suggests preemption is granted with some latitude (Ala al-Tarrukhi) and is not forfeited unless the preempter demonstrates consent, such as pardoning the delay or demanding partition. This is the view of Malik, and one opinion of Al-Shafi'i, although Malik stipulated that a year's lapse invalidates it. Another view holds it lapses after a period indicating abandonment, similar to the right of retaliation (Qisas), as delaying this right causes no harm. A third view, held by Ibn Abi Layla, Al-Thawri, and one opinion of Al-Shafi'i, limits this option to three days, drawing analogy from the option of condition (Khiyar al-Shart).